Browne v. Benson

Per Curiam. 0. E. Benson et al. filed mandamus proceedings against the commissioners of roads and revenues of Muscogee • County, to compel the commissioners to work a described road in said county, alleged to be a post-road within the provisions of the act of 1920 (Acts 1920, p. 234), alleging that the commissioners had failed, neglected, and refused to work and maintain the road as required by the Civil Code (1910), §§ 630 et seq., and that they have also neglected to comply with § 654; that the road is well-nigh impassable and is dangerous, and specific details are alleged as to the manner in which the road is lacking as to the conditions required by law; that the road is an important public road, is near to the City of Columbus; that the commissioners have been appealed to to remedy the defects in the road; and that petitioners are remediless except by mandamus proceeding. The prayers are, for a mandamus absolute requiring the county commissioners to proceed to put the road in the condition required by law, for process, etc. The defendants answered, admitting that the road is a post-road and that it has not been put in the condition required for a first-class road, but insisting that it has been put in the condition required for a third-class road, and that the road is classified as a third-class road. They deny that the plaintiffs at any time requested or demanded of the defendants, pursuant to the provisions of the Civil Code (1910), § 5441, that the road be repaired and worked. By amendment it is averred that the public roads of Muscogee County are worked and managed under the alternative road law, which is in effect in said county, 710 and that the road was regularly and duly classified by the commissioners as a third-class road on March 17, 1926 (this date being subsequent to the filing of the petition for mandamus). It is admitted that the alternative road law has been adopted and is in effect in Muscogee County. The defendants demurred to the petition, which demurrer was overruled, and the defendants excepted. The plaintiffs demurred to the defendants’ answer, but it does not appear that there was any express ruling on the plaintiffs’ demurrer, and it is to be assumed that it was considered along with the answer in passing upon the merits of the case. The judgment recites: “It is the opinion and judgment of the court that no issue of fact is raised by the answer.” The judgment made the mandamus absolute, to which also the defendants excepted. The defendants objected to the admission in evidence of the affidavit of John B. David, urging as grounds of objection, that, “issues of fact being raised by the pleadings in said case, it was contrary to the law to introduce and hear evidence at said time [before the judge without a jury], and that all evidence on issues of fact made in said case should not then, be heard, but should be heard before a jury at the next term of court in the manner provided by the statute.” The objection being overruled, the defendants excepted and assigned error. It appears from the certificate of the clerk that the February term, 1926, of Muscogee superior court was still in session when the case was heard and the judgment rendered.